Testamentary Capacity: Hearsay Evidence as to State of Mind
In Chang Estate v. Chang, 2013 BCSC 976, aff’d 2014 BCCA 28, the court relied on hearsay evidence in determining the validity of a will which essentially disinherited one of the will-maker’s four adult children; the hearsay evidence provided proof of the will-maker’s state of mind and bolstered other evidence that established the will-maker’s testamentary capacity.In an earlier post, I discussed the applicable legal framework when testamentary capacity is challenged.
Deterioration of parent-child relationship
In the Chang Estate matter, the will-maker died on May 25, 2007 at the age of 98. A residential property in Surrey was her only asset of significance. She was predeceased by her husband, with whom she had four adult children. The Surrey property had been purchased in 1988, with the will-maker, her husband, and their oldest son, Mr. Chang, as joint tenants. The will-maker and her husband never lived in the Surrey property. Mr. Chang collected the rent and paid the property taxes and expenses. Over the course of the 1990’s acrimony developed between Mr. Chang and his parents, spurred in part by litigation in relation to the Surrey property. Their relationship deteriorated. The will-maker found these events very distressing, so in January 1998, she and her husband severed the joint tenancy on the Surrey property, leaving Mr. Chang with 1/3rd interest as a tenant in common.
The will and codicil disinheriting one of the children
In her will of 2000 the will-maker bequeathed $10 to Mr. Chang, with the remainder of the estate to be divided between her other three children. The minimal bequeath to Mr. Chang reflected both their poor relationship and the financial assistance she had provided Mr. Chang in the form of his interest in the Surrey property. In her codicil of 2005, the will-maker affirmed her reasons for limiting Mr. Chang’s inheritance.
Unsuccessful challenge to the validity of the will
Mr. Chang challenged the validity of the will on the ground that his mother lacked testamentary capacity and further contended that the will was the product of undue influence from the will-maker’s daughter. The judge examined evidence of capacity from the will-maker’s doctor, daughter, and granddaughter, as well as the notary and the lawyer who prepared the will and codicil, and concluded there were no facts capable of arousing suspicion as to will-maker’s capacity.
Statements of the deceased indicating her state of mind
In upholding the validity of the will, the court found that evidence of statements attributed to the will-maker concerning her unhappiness and distress over her son’s actions was admissible pursuant to the traditional exception to the established rule against hearsay regarding state of mind or emotional or mental state. Per Dardi J.:
[84] I have first determined that the Deceased’s statements are unambiguous indications of her state of mind and clearly have potential relevance to the issues in this case.
[85] In R. v. P (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.), Doherty J. summarized the principles which inform the analysis as follows:
- Assuming relevance, evidence of utterances made by a deceased (although the rule is not limited to deceased persons) which evidence her state of mind are admissible. If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken, although circumstantial evidence of a state of mind poses added problems rising out of the inference drawing process. (Citations omitted).
[86] I am satisfied that that the statements attributed to the Deceased concerning her unhappiness and distress over Mr. Chang are admissible pursuant to the “traditional” exception to the established rule against hearsay regarding state of mind or emotional or mental state: R. v. Panghali, 2010 BCSC 1114 at para. 20.
[87] If I am incorrect, I find the Deceased’s statements are admissible under the principled approach to the admissibility of hearsay evidence that has been repeatedly endorsed by the Supreme Court of Canada. This approach was helpfully summarized by the court in Modonese v. Delac Estate, 2011 BCSC 82 at paras. 88-95 (affirmed on appeal 2011 BCCA 501). Applying the principled approach, I find that the evidence is sufficiently necessary and reliable to meet the admissibility threshold.
Dardi J. found that there was no reason to suggest that the will-maker had any reason to misrepresent her state of mind when she made these utterances to her daughter. The will-maker’s statements, which were made in intimate conversations between a mother and daughter, possessed a circumstantial guarantee of trustworthiness and justified admission under either the principled approach or an exception to the rule against admissibility of hearsay evidence. The potential prejudicial effect of the evidence did not outweigh its potential probative force. In the result, the will-maker’s statements were admissible to provide evidence of her state of mind, but not for the truth of any factual assertions which they may contain.
The bottom line on hearsay evidence as to state of mind and testamentary capacity
Evidence of utterances made by a will-maker that go to his or her state of mind is admissible as an exception to the rule against admissibility of hearsay evidence. Such evidence may also be found admissible as necessary and reliable under the principled approach to the admissibility of hearsay evidence. Evidence in this regard may speak to the will-maker’s reasons for excluding a potential beneficiary or for including certain provisions in the will.